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Pay & Leave Claim Decisions

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Office of the General Counsel

S009180

Dear Mr.[xxx]:

We have reviewed your claim for overtime compensation for standby duty and concur with your administrative agency that your claim may not be allowed.

The record shows that your agency assigned you to a short-term temporary duty (TDY) assignment. The TDY assignment was to last from Monday, May 30, 1994 until June 3, 1994. You traveled to your TDY post on Monday, May 30, 1994, which was Memorial Day, and because of the holiday was a scheduled non-work day for you. Your agency has allowed you holiday pay for the three hours that it took you to travel to the TDY location.

You contend that you should be paid for the remaining five hours because you were on standby duty, asserting that upon arriving at the TDY location, you were expected to be available for all port calls. You state that, due to the nature of the location you were unable to use a pager, so you had to remain in your hotel room to receive calls by telephone. Your agency denied your claim, which you then grieved through the agencys administrative grievance procedure. The agency denied your grievance on the grounds that you were on standby only and were able to freely go out to eat, sleep, watch T.V. etc.

Generally, when an employee is allowed to stand by in his own home with no duties to perform, except to be available to answer the telephone, the time spent in such capacity is not "hours of work" under the general overtime statute, 5 U.S.C. 5542, and therefore is not compensable as overtime. Richard F. Briggs, B-215686, Dec. 26, 1984. Furthermore, a TDY assignment requiring and employee to remain at a TDY post does not, by itself, count as hours of work when standby duty was neither contemplated or performed.

You dispute whether you could freely leave your hotel room to eat, sleep, watch T.V. etc. However, in the absence of clear and convincing evidence to the contrary, we accept the facts as determined by the agency. Even where an employee may be entitled to overtime compensation, payment cannot be made where the claimant has submitted only vague or indefinite statements of entitlement. B-188238, May 20, 1977.